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TMI Blog2016 (11) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... urther evidence on record. In the present case, I find that apart from the shortages, there is no evidence to show that clandestine production and removal of final product. It is only a marginal small percentage shortage in the stock of raw material, I find no justifiable reason to upheld the impugned orders confirming the demand of duty on the finding of clandestine removal. Accordingly, the impugned order is set aside and appeal allowed with consequential relief to the appellant. - Excise Appeal No. 727 of 2006 - ORDER No. FO/ 54764 /2016-(SM) - Dated:- 4-11-2016 - Hon'ble Ms. Archana Wadhwa, Member (Judicial) Shri Prateek, with Shri Jatin Singhal, Advocates for the Appellants Shri R K Mishra, AR for the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. by Tribunal vide its Final Order No. 50934/2015 dated 22.1.15 observed as under: 6. It is not disputed that the factory of UL and the factory of UTL, both 100% EOUs, are located in the same compound. In this appeal, we are concerned with the alleged shortage in the factory of UL which was detected in the course of stock taking done from 13.06.2000 to 16.06.2000. According to the Department, there was shortage of 73.904 MTs. in the stock of various yarns and shortage of 1.603 MTs. in the stock of wool waste. The allegation of the Department is that this quantity of yarn and waste has been clandestinely removed without payment of duty. The appellant s contention, however, is that while the shortage of 1.603 MTs. of wool waste is due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Excise Act, 1944 and on being questioned about shortage, had stated that this yarn has been shifted to another godown, as the yarn was damaged and moth eaten and as such, it is not the shortage. We find that this statement of Shri D.K. Kothari has neither been relied upon in the show cause notice nor the appellant had been supplied a copy of the same and instead another statement dated 29.05.2001, which had been relied upon. Though in the reply to the show cause notice and at the time of personal hearing, the appellant had referred to the statement dated 16.06.2000 of Shri D.K. Kothari, General Manager and about their intimation dated 5.4.2000 to the Asstt. Commissioner, no finding had been given by the Commissioner in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der relating to confiscation of the excess found goods is set aside. 5. As regards the material found short in the assessee s factory, in respect of which the Central Excise duty stand confirmed, I find that the same are either in the nature of yarn or wool wastage. The appellant had taken a categorical stand before the authorities below that the shortages worked out to be 1.603 MTs only and that difference is also attributable to conditioned weight. Therefore wool being hygroscopic in nature. In the absence of any evidence to show that such raw material has been used in the manufacture of final product which stand cleared by them without payment of duty, the impugned orders confirming demand of duty cannot be upheld. In support, they ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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